Category Archives: Intellectual Property Rights

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Last Saturday was the 10th International Record Store Day, an annual event to celebrate independent music shops. A key feature is the list of exclusive and limited edition vinyl releases, most of which can only be bought in selected participating stores – in person and on the day. But there are also loads of other promotions and live events, designed to get people browsing the racks in their local retail outlet. In an age when streaming services now account for the bulk of US music industry revenues, what is the future of the neighbourhood record shop (those that are still left, that is)? Will streaming services kill off digital downloads, as well as sales of physical product like CDs and records?

Despite the sense of doom that has permeated the record industry in recent years (if not decades!), there is also a feeling that, just as the internet has not yet managed to kill off the publishing industry, digital has not yet killed the radio star. The independent music industry in particular has found a way to survive, and retail stores are still an important part of the business.

So, what are the recent trends in music industry sales and business models?

First, the continued rebound in vinyl sales (at least in the UK) show that there is renewed interest in this 70-year-old format, with industry data showing a 25-year high (but not yet a return to the 1980s’ peak). Record Store Day is generally credited with boosting vinyl sales. And to be fair, even music streaming services have contributed to this growth, through curated content, recommendation engines and user preferences: meaning that listeners get exposed to a wider range of music and artists than they would from traditional Top 40 radio, and they get to explore and discover new music.

Second, digital downloads, once seen as the industry growth engine, are facing a pincer attack, from streaming services as well as vinyl sales. No wonder that Apple is expected to slowly and quietly retire the iTunes download store, and shift more focus onto its own Apple Music subscription service. The music industry (especially the dwindling number of major labels) didn’t really “get” the internet. Having just competed in the CD-format wars, the major labels then competed on digital file formats, and tried to lock their digital content to proprietary players and software protocols. Some of this reticence was justified – thanks to digital piracy and illegal file sharing – but they didn’t (and still don’t) help themselves by poor CX on their retail websites (if they have an e-commerce presence at all), and adherence to arcane geo-blocking.

Third, many musicians are benefiting from increased exposure via streaming services – although with Apple Music and Spotify seemingly leaving the other platforms far behind, the downside risks from a dominant duopoly don’t need spelling out. Especially as the royalty payments from streaming are generally much smaller than they would have been from physical sales, “traditional” downloads and radio airplay. This source of friction between labels, their artists, music publishers and online content platforms surfaced again earlier this month, in a spat with YouTube over fees for video streaming.

Fourth, in a new move in the streaming wars and the battle to win mobile screen real-estate, Australian startup Unlockd has just secured a deal with MTV UK to stream free music videos in return for viewing ads. It’s also a move designed to counter ad-blockers and locked screens, while finding another way to distribute sponsored content. Elsewhere, some mobile carriers are now including music streaming services as part of customers’ un-metered data consumption, although what this may mean for artist royalties and the revenue share from ad-supported content on Spotify etc. is unclear.

Fifth, as another example of how the music industry is having to adapt, UK startup Secret Sessions is using a combination of social media, independent/unsigned artists and major brand licensing deals to find new ways to generate revenue streams for artists that can no longer count on income from traditional sales-based royalty deals, especially with the diminished licensing revenues from streaming services.

Sixth, as further evidence that all is not well in the world of music streaming, SoundCloud continues to lose its way. Once the music service of choice for user-contributed content created by independent and unsigned musicians, it got greedy and has been subject to recent speculation about its financial health and future.

Initially, SoundCloud was all about the makers and producers – helping artists connect with their audience, via a simple but effective website and mobile app. It also meant that at first, SoundCloud charged musicians and labels under a “pay to publish” model, while listeners could simply stream (and sometimes download) all this content for free. Then, it alienated many of its earliest supporters and champions, by introducing “ad-supported” streaming (with priority access going to labels and artists with big marketing budgets, who could also attract/demand the lion’s share of the advertising revenue).

SoundCloud also seriously messed with the app, making it far less useful to artists, and then introduced its own subscription-based streaming service, SoundCloud Go. Only, it wasn’t satisfied with just one subscription model, and recently announced an “upgrade” – whereby the “old” service became “SoundCloud Go+“, and a “new” SoundCloud Go was launched. Confused? You will be….

Meanwhile, Bandcamp continues to outperform the industry, in terms of annual sales growth, and has become a unique platform that offers music streaming, digital downloads and even physical product. (Frustratingly, Bandcamp is still blocked from selling digital content directly via iOS devices – even though much of this content is unavailable on either iTunes or Apple Music. Surely that’s anti-competitive?) And now there’s an amusing string of “SoundCloud vs Bandcamp” memes doing the rounds which may say a lot about the respective fortunes of these rival services.

Finally, the last word on the current state of music streaming and digital downloads should go to the artist known as L.Pierre. He has just announced the release of his latest and final (vinyl-only) album under that particular moniker, with an accompanying artist statement which could be seen as both an indictment upon and a requiem for the music industry.

NOTE: Apologies to my readers for any confusion regarding the timing and accessibility of this post. Thanks to WordPress, this article “missed” its scheduled time, and the outgoing e-mail notification had a faulty link. Normal service will hopefully be resumed next week…

Why should we claim ownership of our IP? This was the topic up for discussion at the recent Slow School dinner on Collaborative Debating presented by Margaret Hepworth. I won’t reveal how a collaborative debate works (I recommend you sign up the next time Slow School runs this class…), but I do want to share some of the issues and insights that were aired. In particular, the notion that shared knowledge is the basis for greater prosperity.

First, the discussion centred onIP issues relating to ideas, content, knowledge, creative concepts and theoretical models. Not surprising, as the participants were all independent professionals, consultants, bloggers, creatives, facilitators, teachers and instructors. So we didn’t address the areas of patents, registered designs or trade marks.

Second, as someone who has worked in the publishing, data and information industries for nearly 30 years, I believeit is essential that authors, artists, academics, musicians, designers, architects, photographers, programmers, etc. should be allowed both to claim copyright in their work, and to derive economic benefit from these assets. However, I also recognize that copyright material may often be created in the course of employment, or under a commercial commission or as part of a collaborative project. In which case, there will be limitations on individual copyright claims.

Leaving aside the legal definitions of IP and how copyright laws work in practice, the discussion explored the purpose and intention of both authors (as “copyright creators”, narrowly defined) and end users (as “licensees”, broadly defined). There was general agreement that sharing our content is a good thing, because we recognise the wider benefits that this is likely to generate.

But there is a risk: merely acknowledging someone else’s authorship or copyright is not the same as accurately representing it. Obviously, plagiarism and passing off someone else’s ideas as your own are both copyright infringements that can give rise to legal action. Even with the “fair use” provisions of copyright law, a critic or even an acolyte can mis-interpret the content or attribute a meaning that the author did not intend or even anticipate. As one participant noted, “Copyright is not just concerned with what we claim ownership over, but what others may claim as their own.” Not for nothing have we developed “moral rights” in respect to authorship of copyright material.

Although we did not discuss specific issues of copyright remuneration (e.g., through royalties, licensing fees or financial consideration for copyright assignment), there was a proposition that establishing copyright protection can lead to social, intellectual and even economic limitations. The understandable, but often misguided need to protect our copyright (as a form of security) is driven by fear, underpinned by scarcity models. Whereas, a more generous approach to copyright can actually lead to greater shared prosperity, based on the notion of the abundance of ideas and knowledge. And since, as one speaker put it, “there is no such thing as an original concept because all ideas build on previous knowledge”, the inherent value in IP is in how we contribute to its nurturing and propagation.

At the end of the discussion, and reflecting on my own recent experiences with copyright infringement and geo-blocking, I found I had shifted my position – from one that tends to take a more absolute view on copyright ownership, to one that identifies the need for some further modification to the current copyright regime, along the lines of the following:

Copyright ownership should not entitle the owner to abuse those rights – if anything, the copyright holder ought to be placed in a position equivalent to a trustee or custodian, to ensure that they act in the best interests of the IP asset itself, not merely their own interests. That should not preclude the owner from being compensated for their work or being allowed to commercialize it, otherwise, why would anyone bother trying to create new ideas or content?

Establishing copyright in ideas and creative concepts needs to be supported by a notion of “intent” or “purpose” (a bit like mens rea in criminal law). For example, if the intent is to merely prevent anyone else using or sharing the idea, then any copyright protection might be limited to a much shorter duration than the usual “life of author plus XX years” model.

Equally, under a “use it or lose it” provision, if copyright owners (and/or their publishers, distributors and license holders) elect to take their content out of circulation from a market where it had been widely available, then they would need to establish good cause as to why the copyright should not be open to anyone else to use and even commercialize (subject to reasonable royalty arrangements).

If we accept that all knowledge is additive, and that the proliferation of collaboration and co-creation is because of the need to share and build on what we and others have already created, how can we ensure the integrity and mutual benefits of open source and creative commons initiatives? One analogy might be found in the use of blockchain technology to foster contribution (adding to and developing an existing idea, concept, model or platform) and to support authentication (to validate each idea extension).

Perhaps what we need is a better IP model that both incentivizes us to share our ideas (rather than rewards us for restricting access to our content), and encourages us to keep contributing to the furtherance of those ideas (because we generate mutual and ongoing benefits from being part of the collective knowledge). I’ve no idea what that model should look like, but surely we can agree on its desirability?

No sooner had Netflix launched in Australia than Treasurer Joe Hockey announced the imposition of GST on “intangibles” purchased from overseas vendors. The Treasurer has also indicated that the GST-free threshold for on-line imports will be lowered from the current $1,000. Dubbed the “Netflix tax”, Australian consumers should now expect to pay more for their digital content such as video, music, software and e-books, even though on most evidence, we are already charged more for comparable products than in other markets.

Geo-blocking is already an obstacle for Australian consumers…

Backdrop

We all know why the Treasurer has proposed this scheme: the Government has to make up for declining tax receipts, and appease the States who are squabbling over the allocation of GST revenue between them. Plus the current Senate inquiry into corporate tax avoidance by companies like Apple, Google and Microsoft (who divert locally sourced income to offshore entities to reduce their income tax liability in Australia) is driving the public and political agenda on global tax minimization schemes (which are nothing new, of course).*

But it’s not as simple as slapping an extra 10% on the price of a movie download, even though GST is a relatively easy and cost-effective way of generating tax revenue. For one thing, there is little consistency in how vendors currently sell their digital products in Australia. Secondly, geo-blocking is already an obstacle for Australian consumers, leading to the sort of content piracy infringement that will now make local ISP’s and their subscribers more vulnerable to legal action, following the recent “Dallas Buyers Club” court ruling. Thirdly, local retailers who have long campaigned to have the GST-free threshold removed or lowered fail to acknowledge why customers prefer to shop from overseas vendors.

Goods & Services Tax

GST (similar to VAT in Europe) is a simple consumption tax. It applies to the sale or supply of most items (except things like fresh food and health services) at a flat rate of 10%.

Even better, the Government and the tax authorities rely on businesses to collect, report and remit GST receipts, making it relatively cheap to administer (when compared to other taxes) via the Business Activity Statement process managed by the Australian Taxation Office.

The GST is a key topic of the current review of the tax system – likely to result in a higher rate (or different rates), and/or broader application to items not currently included.

Vendor Inconsistency

In principle, I don’t have a problem in paying GST on digital items I buy from overseas vendors – but there is so much inconsistency that there is a risk of consumers having to pay two lots of sales tax.

For example, every iTunes receipt issued by Apple Pty Ltd (an Australian entity) states that the sale amount already includes GST – in which case, Apple should be remitting that component to the ATO, and no need for a price increase.

However, Adobe chooses to invoice me from Ireland, and as such no GST (or VAT) is applied, but I am charged forex fees, even though the invoice amount is expressed in Australian dollars, because my bank treats this as a foreign transaction.

Meanwhile, although some UK vendors I buy from direct do not apply GST/VAT on my orders (Amazon UK included), others do – meaning I risk having to pay both the GST and VAT. As a further sign of vendor inconsistency, Amazon’s US store does not appear to deduct US sales tax for foreign customers; neither the UK or US Amazon stores sell music downloads to Australian customers; and Amazon’s Australian store only sells e-books and apps.

Geo-blocking

The decision in the “Dallas Buyers Club” IP infringement case brought by Voltage Films, has again drawn attention to Australia’s poor reputation for copyright piracy as evidenced by the number and frequency of illegal downloads.

Some journalists have commented that distributors often delay the local release of imported content (for various reasons) although this was not seen as a justification for piracy (and quite rightly so).

While foreign films are frequently released later in Australia, it’s interesting that TV (even free to air channels) has woken up to this, and now broadcasters rush to fast-track imported shows to keep audiences happy.

It’s also interesting to note that the Productivity Commission, as part of its competition policy review of IP laws, has suggested that if local rights holders and distributors choose not to exercise their commercial rights, under a “use it or lose it” model, third-party distributors would be able to step in. This also has the potential to undermine the archaic industry practice of geo-blocking, whereby sales of music, film and TV content (physical and digital) are restricted by territory.

Local retailers and distributors need to lift their game

Does the absence of GST really encourage consumers to buy from offshore retailers? I would beg to differ.

Local rights holders often do not bother to make content and products available in Australia. And local retailers won’t usually stock products if they are not readily available from wholesalers or distributors.

I recently had to contact an overseas artist, the UK record label and its Australian distributor several times to make their music available online in Australia. The local distributor had not bothered to release the content, even though they had the rights, but geo-blocking prevented me from accessing it legally from overseas suppliers.

It’s the combination of inadequate local distribution, non-availability, higher prices and lacklustre service that encourages Australian consumers to buy from overseas, even if that means circumventing geo-blocking. In many cases, I doubt the addition of GST will be a serious deterrent to online overseas shopping.

In my own case, I once found that the local branches of a global retail brand chose not to stock the item I wanted, and their US parent geo-blocked me from ordering on-line. So I resorted to buying in the “grey” or parallel imports market, from an offshore vendor willing to ship direct to Australia. It was still cheaper, even after shipping costs, and even if GST had been added (I probably paid US sales tax on the transaction anyway), than if I had bought from a local retailer (assuming they bothered to stock the item).

Hopefully, this debate on GST and the Productivity Commission’s review of competition policy will finally give local retailers an incentive to do a better job of serving their customers.

* The debate on corporate tax minimization might want to look at where “value” is created, and where the revenue is booked, that gives rise to a tax on the resulting profits. For me, the retail value of intangibles such as digital products is created when someone pays to download them, at the point of sale – i.e., in the consumer’s geographic location. Although the vendor may argue that the IP is owned by an offshore entity to whom they must pay royalties, the individual download itself does not have any standalone value, until it is accessed by the consumer. Even a high rate of royalty repatriation could not be more than the retail price, so logic might suggest that local profits should be taxed accordingly.

If you are just getting started in content marketing, or if social media is still a bit of a novelty for your organisation, there are a couple of things you should definitely avoid when attempting to use third-party content for your own promotional purposes: don’t misappropriate, and don’t misrepresent.

All marketers will be alert to false, deceptive or misleading advertising. More experienced content developers should also understand legal issues such as plagiarism, copyright infringement, passing-off and libel. However, even seemingly innocent and well-intentioned references made to third-party content may inadvertently border on unconscionable conduct.

Last week, I had the rather disturbing experience of a company attempting to use my blog to promote a service, and in a way that not only implied I was endorsing that service, but also suggested that my blog was somehow the reason why customers should sign up for it.

I found this problematic for three reasons:

First, I had no knowledge of or connection with this particular service, and the promotional message gave the impression I was endorsing it, which was obviously misleading, and it quoted my article out of context. At an extreme level, if I ever wrote a blog about the “10 reasons why I take public transport”, and then a political party co-opted my content to say “10 reasons why you should vote for our transport policy”, that would be misappropriation (of my content) and misrepresentation (of my views).

Second, even though the service referred to was being offered for free, if the company had managed to generate new clients via this particular campaign, there’s no direct benefit to me or my business, but lots of benefit to the company and/or its partners. In this increasingly self-directed, interconnected and collaborative environment, it’s important to make sure we are all “paying it forward” in a constructive and mutually beneficial way. (I have no problem with receiving a referral fee or a direct benefit in kind if my efforts have been instrumental in securing new customers for your business!)

Third, I am fortunate that a number of my blog articles have been re-syndicated via social media and other channels. In writing about third-party products and services, I am very careful not to endorse specific businesses or brands, other than to mention names (and link to relevant sites). Where I am providing criticism, I endeavour to do so under the auspices of “fair comment”. This is important when establishing credibility with an audience: that my content is seen to be authentic, that I demonstrate awareness about the purpose and context of my blog, and that I attribute whenever I am referencing or citing third-party content. (See an earlier blog I wrote on this topic) But, if in doubt, always ask the content owner in advance before linking, referencing, quoting, attributing or re-contextualising their content.

Finally, if I can be of any assistance in relation to your own content marketing, please let me know via this site.